Bill Introduced To Fix Anti-Circumvention Provision Of DMCA

from the well-needed dept

While there was a lot of talk after the White House agreed with an awful lot of people that mobile phone unlocking should be legal, there's been little real action. Part of the problem might be that the White House suggested that this could be fixed via telecom law, when the whole issue had nothing to do with telecom law, but the broken anticircumvention provisions of the DMCA, also known as 17 USC 1201. While Congress did put forth a bunch of bills, they were all lacking, and none seemed to really tackle the underlying problem: 17 USC 1201 is completely broken. It makes circumventing a technical protection measure a form of infringement, even if the circumvention has nothing to do with actual copyright infringement. Furthermore, it makes it illegal to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof," that is primarily designed for circumventing digital locks even if the end use is not infringing.

Thankfully, Rep. Zoe Lofgren has finally introduced a real reform bill that tries to tackle this issue, along with Rep. Thomas Massie, Rep. Anna Eshoo and Rep. Jared Polis. The bill, called the Unlocking Technology Act of 2013, changes the law to make it clear: if you circumvent some sort of digital lock for a reason that has nothing to do with infringement, it would no longer be illegal. Basically, it would add the following:

It shall not be a violation of this section to circumvent a technological measure in connection with a work protected under this title if the purpose of such circumvention is to engage in a use that is not an infringement of copyright under this title.

Similarly, circumvention tools that have primarily non-infringing uses would also be legalized. It would still be illegal to do that big list of things above if the intent is to infringe, but merely creating the tools for non-infringing purposes would be legalized. Thus, tools for unlocking mobile phone, and the act of unlocking mobile phones, would be legal.

The bill also has two other key pieces. First, it makes it clear that it is not copyright infringement to switch networks and then access or load a copy of software that is stored in RAM. This seems very specific, but some operators have argued that by putting in a clause in a user agreement that forbids switching networks, those who do so could infringe by then accessing software stored in memory.

Finally, and perhaps most importantly, the bill addresses the claims that fixing the DMCA would violate trade agreements (we've heard seven different trade agreements would be violated with this simple fix of the DMCA) by telling the President that Congress says he needs to fix those agreements. Nice and simple:

The President shall take the necessary steps to secure modifications to applicable bilateral and multilateral trade agreements to which the United States is a party in order to ensure that such agreements are consistent with the amendments made by this Act.

This is actually really important. Because (just watch) copyright maximalists love to scream about how changes like this would "violate our international obligations" (while leaving out the fact that they were the ones who wrote half of those agreements in the first place). But the fact is that Congress has authority over international trade, not the executive branch. So if Congress wants, as would be the case with this bill, it can order the executive branch to change or fix any international agreements that get in the way of good law.

Reader Comments

Netflix?

If circumvention isn't illegal anymore, could Netflix decrypt DVDs and stream without the ridiculous royalties? ala making it much more like the DVD rental side. Just paying the royalty on a DVD and reusing it?

Re: Netflix?

No. DVD rental doesn't involve any royalties (unless the renter wants it to, for some inscrutable reason, I suppose). Per First Sale, any lawfully made copy, i.e. the plastic video disc, can be rented as the owner of the copy (as opposed to the owner of the copyright) sees fit. No royalties are due, no permission is needed, and there's nothing special about the copies. Netflix could buy DVDs from BestBuy or Amazon, put a sticker on them, toss them into envelopes, and be all set.

Transmitting is a different kettle of fish, and first sale will not help. I suppose they could pull a Cablevision and rent individual discs to customers without the discs leaving the premises. The discs would then be loaded into players (or would permanently live in them) and the video would be streamed to the individual renter. But this is rather more annoying for Netflix to implement as opposed to what Cablevision or Aereo set up, and I doubt they would.

Re: Netflix?

Don't think so. The copyright owner still owns rights to copying, performing, and distributing. This bill is for all the dmca abuses that have nothing to do with copyright privileges (e.g. garage door openers, phones, etc.)

Re: Netflix?

Netflix will still have to pay licensing frees to stream. The only difference is that it would no longer be illegal to break the copy protection to stream, as long as they held the applicable licences to stream.

Re: Netflix?

I suspect that Netflix's activities would be covered by contracts and licenses that prevent would them from doing this.

However, I do wonder if it would mean that tools could become available to allow offline play of Netflix's content (for example, if a program was created to bypass Netflix's DRM and save a copy of a film locally but delete it after one play, is that an infringing action or merely VCR-like time shifting)?

There's some interesting questions to be raised here, for sure, but I doubt that large players currently locked into contracts with content owners are going to be the ones taking advantage of this.

Re: re: Trade Agreements

Superfluous only, I think. IIRC Congress has the power to regulate foreign commerce, the President has the power to negotiate and agree to treaties, and the Senate has the power to ratify treaties. Congress isn't ever bound by treaties, and can override them as they see fit. This may cause problems with our international relations, but that's the President's problem.

At worst they can't force him to do anything, but it's more a political problem than anything where unconstitutionality would pose a problem for passing the law.

May finally be legal to play DVDs on Linux

And if this circumvention amendment occurs, it may finally be legal to distribute a copy of Linux that can play legally-purchased DVDs (without going through some crazy hurdle of licensing the playback software).

Re: Re: Re: May finally be legal to play DVDs on Linux

Interestingly enough, libaacs and libbluray already are present in Debian repos. I think they are different in a sense that they don't actually break the DRM like libdvdcss does, but allow accessing the data if decryption keys are present (without keys they won't really help). See https://wiki.archlinux.org/index.php/BluRay

May be that's the reason why Debian let them in, but not the libdvdcss, but I'm not sure 100%.

Re: Re: Re: Re: May finally be legal to play DVDs on Linux

yes, this is correct.

Not all DVDs are encrypted. Distros can (and do) legally include player -- and copying -- software, just not the decryption software. So out of the box, you can play DVDs -- just not the encrypted ones until you obtain and install the decryption software from elsewhere.

Re: Re: Re: May finally be legal to play DVDs on Linux

Actually libaacs and libbluray are already present in Debian repos. May be that's because unlike libdvdcss they don't actually break the encryption, but allow accessing the data if decryption keys are available, and without them they won't really help. But I'm not sure 100%.

Re: Re:

Re:

The firestorm of lobbying that's about to erupt from the copyright and wireless carrier industries will make congress grind to a halt, and the amount of money that will be spent doing so will stun you speechless. I rate the chances as "practically zero".

As for McCain's bill, I am not happy he ain't backing the broadcasters to close Aereo down, but to aid piracy with Aereo, that goes the same for lofgren. I urge the Senate to vote No on McCain's bill and I urge the House to vote No on Lofgren's bill. I also urge the House and Senate to revive SOPA, PIPA, and the CFSA (Commerical Felony Streaming Act) and make sure we lock those fandom nerds up for good. Fandom nerds need to get a real job and a real life. Artists, publishers, media and record companies need to end this right now.

I am a copyright maximalist and I'm proud of it. And the RIAA, MPAA, Copyright Alliance are so proud of me expressing against fandom garbage.

There is a reason.....

"manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof,"

If you ever heard of the Atari Games (Atari's Arcade division) subsidiary Tengen....you will understand why that bit is (stupidly) in place. Although things got settled outside of court so we got to play great Atari Arcade ports on the NES....and a few extra golden gems as well (namely Skull And Crossbones).

Re:

No, since the United States never legally entered into ACTA in the first place. It was illegally signed by President Obama under false pretenses, but to be valid the Constitution requires that it be ratified by Congress. That never happened.

Well, whoop-de-freakin-do. How does this bill define "non-infringing"? Whether infringing or non-infringing, people break the anti-circumvention clause all the time anyway and what happens? Nothing. The whole anti-circumvention thing is pretty well unenforceable to begin with. If I want to back up my purchased DVDs or burn off rented DVDs (which I do), what's to stop me? Again, nothing. I have anti-circumvention tools like DVDFab Decrypter and Any DVD on my computer and use them all the time. So this bill is just as meaningless to me as the DMCA.